The recent dispute involving the family whose petition to change its last name to ChristIsKing was denied is interesting on several levels. As I noted here, it was claimed by the court that compelling a representative of the government to say, “ChristIsKing” (or other phrases like “JesusIsLord”) would violate the Constitution. In the earlier post, I speculated about whether names like Theophilus or Christopher would likewise violate the Establishment Clause, and someone commented that the difference is that ChristIsKing is a creedal assertion while Theophilus or Christopher is not. That seems also to be the distinction made by the judge, who was concerned about the “offensiveness” of proclamations by agents of the state with respect to some theological proposition.
Setting aside the issue of why creedal assertions should be more objectionable for Establishment Clause purposes than other sorts of religious assertions, I suspect that’s not what really explains the court’s decision. First, Theophilus and Christopher are creedal assertions, at least of a kind: they depend on theological or Christian assumptions. To name someone Theophilus is to assume that there is a God to be loved; and to name someone Christopher is to assume that there is a Christ to be carried. Those are theological propositions. Second, I am dubious that a municipal clerk or other government agent who was required to say the name ChristIsKing in any official capacity would be reasonably perceived as endorsing any creedal proposition. Think about a court clerk who, say, is calling the name of a criminal case: “Next up on the docket is the United States of America v. Joseph ChristIsKing, docket #12-1593510A.” It would be highly peculiar to believe that the clerk was stating a creedal proposition sponsored by the government. Third, suppose the court clerk said this: “Next up on the docket is the United States of America v. Joseph Christus Rexmundi.” I doubt that anybody would bat an eye. And yet the creedal assertion in this last name is that Christ is king of the world. So why the difference?
The difference has to do with common cultural ignorance or ordinary cultural associations. One of the more curious things about the endorsement test as the Establishment Clause standard is that it depends on what a reasonable person would perceive. The reasonable person is a famously problematic concept in the law, so it is no surprise that it has had such contested results in this area. One of the special quirks that Establishment Clause cases have brought to the age-old problem of the reasonable person is that sometimes, the test for a reasonable person’s perceptions can look very much like the test for an ignorant person’s perceptions. I remember a case from a couple of years ago out of the Third Circuit, Stratechuk v. Board of Education, 587 F.3d 597 (3d Cir. 2009), which involved a misguided school policy prohibiting the singing of “celebratory” religious music at school-sponsored events. The administration of the policy was baffling: the Martin Luther King Gospel Choir was prohibited from performing at the December concert, while the performance of Vivaldi’s Gloria in Excelsio (cum sancto spiritu) was permitted because the music “does not have a religious orientation and does not refer to a holiday.”
A parent’s claim that the exclusion of certain kinds of music violated the Establishment Clause was, in my view, properly rejected by the Court. But with a small tweak of the facts, we can see the odd ways in which the endorsement test might cash out. Suppose the district had banned the performance of all religious music at school throughout the year and no matter the context, because it wanted to avoid the appearance of endorsing religion. And suppose it had permitted the Vivaldi piece, but excluded everything else, giving as its reason that “Gloria in Excelsio (cum sancto spiritu)” “does not have a religious orientation[.]” This is of course untrue, but for purposes of the endorsement test, that hardly matters. What matters is whether a reasonable person would perceive the endorsement, and because many people wouldn’t have perceived it in the piece by Vivaldi, it satisfies the test, while Frosty the Snowman (whose “religious orientation” is, to put it gently, attenuated) and the MLK Gospel Choir don’t.
Something similar is going on in the name change case. Theophilus and Christopher are not endorsements — and therefore unconcerning to the court — because most people wouldn’t perceive them as endorsements, because most people either don’t know what they mean or don’t associate that knowledge with the name itself (any longer). But they of course do carry highly theologically charged messages — messages which few people perceive. If they did perceive those messages, perhaps they might be more offended (as I’ve said before, this whole area of the law is riddled with judicial arm-chair psychology about what offends people, but set that aside). ChristIsKing carries a theological message which is much more commonly perceived, and whose putative offensiveness is therefore, presumably, much more commonly experienced. And so the endorsement test seems to trade — at least in these cases — not so much on the divide between the religious and the non-religious, as on the divide between knowledge and ignorance.